[2015] KEHC 4262 (KLR)
The court found that although the Penal Code prescribes a stiff penalty for handling stolen property, the circumstances of this case—including the appellant being a first offender, the low value of the goods, and reasonable mitigation—did not justify an 8-year sentence. The trial court failed to exercise its...
Source-derived case information.
- Citation
- [2015] KEHC 4262 (KLR)
- Parties
- Appellant: Peter Njonjo Mungai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 186 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- AW Macharia
- Legal Topics
- Sentencing Principles, Handling Stolen Property, Mitigating Factors, First Offender, Excessive Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njonjo Mungai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 8 years imprisonment for handling stolen property was excessive in the circumstances.
- 2 Whether the trial court exercised its sentencing discretion judiciously.
Ratio Decidendi
The court found that although the Penal Code prescribes a stiff penalty for handling stolen property, the circumstances of this case—including the appellant being a first offender, the low value of the goods, and reasonable mitigation—did not justify an 8-year sentence. The trial court failed to exercise its sentencing discretion judiciously by not considering these factors. The five years already served by the appellant were deemed excessive, and the sentence was therefore set aside. The appellant was ordered to be released immediately, having served sufficient sentence.
Court Disposition
appeal_allowed
Orders
- The appellant has served sufficient sentence and is forthwith set free.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CRIMINAL APPEAL NO. 186 OF 2012
PETER NJONJO MUNGAI……………………………………….APPELLANT
VERSUS
REPUBLIC………..………………………………..…………….RESPONDENT
(Being an appeal from the judgment of the Hon. B.A. Owino (Senior Resident Magistrate)
in
Thika Chief Magistrate’s Criminal Case No.774 of 2008 delivered on 12th March, 2010)
JUDGMENT
The appellant herein, Peter NjonjoMungai, was charged with handling stolen property contrary to section 322 (2) of the Penal Code. Particulars of the offence were that on the 24th day of March 2008 at Mithi Village in Muranga South District of Central Province otherwise than in the course of stealing dishonestly retained one pair of trouser, one pair of shoe, one coat and driving license knowing them to be stolen property. He was found guilty, convicted and sentenced to 8 years imprisonment. Under Amended Supplementary Grounds of Appeal he appealed both against the sentence and conviction.
The appeal was canvassed before me on the 4th of June 2015. The appellant changed his mind and submitted that he would proceed with the appeal as against the sentence only. He stated that he was remorseful and shall abide with the law upon his release.
Learned stated counsel M/s Kimiri did not oppose the appeal on noting that although the appellant was remorseful he had been in remand for two years before the conviction.
Under section 322 (2) any person who is found guilty of handling stolen goods upon conviction is liable to imprisonment with hard labour for a term not exceeding 14 years. Whereassentencing is in the discretion of the trial court such discretion must be exercised judiciously and taking into account the facts and circumstances of the case in totality.Asentence must also be commensurate with the offence and reflect the moral blameworthiness of the accused person. SeeOmuseVs. Republic (2009) KLR, 2014. TheCourt of Appeal in referring to AmbaniVs.Republic (1990) KLR, 161 noted as follows:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and it was thusnot proper exercise of discretion in sentencing for the court to have failed to look at the facts and circumstances of the case in their entirety before settling for any given sentence”.
The Court must also be careful not to apply the wrong principles in imposing the sentence; that is to say the same must not be excessive as not to serve the purpose for which it is intended. A trial court must always bear in mind that a sentence is aimed at reforming the offender and serve as a lesson so that the offender does not commit the offence again. The court must be cautious so that the sentence does not harden the offender.
In the instant case, although the penalty prescribed is stiff, the circumstances and facts of the case did not warrant an 8 years imprisonment term. Firstly, the appellant was a first offender. Secondly, the worth of goods he was found in possession of was so low and Thirdly, the mitigating factors he offered were reasonable. In my view, the sentence of 8 years was excessive in the circumstance. He was sentenced on the 12th of March 2010 and has therefore already served five years out of the 8 years imprisonment term. Even those five years he has served are already excessive given the facts of the case. The appeal must, in any event, succeed.
In the end, I hold that the appellant has served sufficient sentence and is forthwith set free.
DATED and DELIVEREDat NAIROBIthis 8th day of June 2015.
G. W. NGENYE – MACHARIA
JUDGE
In the Presence of:
1. The appellant in person.
2. M/s Atina holding brief for Mureithi, for the respondent.